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EXHIBIT 4.4
GENERAL SECURITY AGREEMENT
TO: FIRST ONTARIO LABOUR SPONSORED INVESTMENT FUND LTD.
(hereinafter called the "Lender")
GRANTED BY: STRIKER PAPER CANADA, INC. (hereinafter called the
"Undersigned")
1. SECURITY INTEREST. As and by way of a continuing security interest,
as general and continuing security for the payment of all obligations,
indebtedness and liabilities, direct or indirect, of the Undersigned to the
Lender wheresoever and howsoever incurred and whether incurred before, at the
time of or after the execution hereof, including extensions or renewals
thereof, including without restricting the generality of the foregoing,
obligations to the Lender for advances by the Lender to the Undersigned under a
certain loan agreement made as of March 20, 1998 between the Lender and the
Undersigned (the "Subordinated Loan Agreement") (the obligations, indebtedness
and liabilities of the Undersigned referred to above are hereinafter
collectively called "Obligations"), and, IN CONSIDERATION OF THE OBLIGATIONS,
the Undersigned hereby grants, bargains, assigns and transfers to the Lender a
floating charge, as and by way of a continuing security interest (hereinafter
together with any other security interest hereby created called the "Security
Interest") in the following property described in sub-paragraphs (a), (b), (c)
and (d) of this paragraph now or hereafter owned or acquired by or on behalf of
the Undersigned:
(a) INTANGIBLES - all intangible property and not included in paragraph 10
below including, without limitation, all contractual rights and
insurance claims, patents, trademarks, trade names, goodwill,
copyrights and other industrial property of the Undersigned (all of
which property is hereinafter collectively called "Intangibles");
(b) PROCEEDS - all of the Undersigned's property in any form derived
directly or indirectly from any use or dealing with the Collateral
(defined in the last sentence of this paragraph) or that indemnifies
or compensates for Collateral destroyed or damaged (all of which
property is hereinafter collectively called "Proceeds");
(c) BOOKS & RECORDS - all of the Undersigned's deeds, documents, writings,
papers, books of account and other books relating to or being records
of debts, chattel paper or documents of title or by which such are or
may hereafter be secured, evidenced, acknowledged or made payable;
(d) EQUIPMENT - all tools, machinery, equipment, furniture, plants,
fixtures, and other tangible personal property, vehicles and fixed
goods and chattels including all tools, machinery, equipment,
furniture, plants, fixtures, vehicles, fixed goods and chattels other
than Inventory (as defined below), and any other property or assets of
the kind, nature or description of the property or assets particularly
described in Schedule A hereto (all of which property is hereinafter
collectively called "Equipment");
and for the same consideration the Undersigned hereby grants, bargains, assigns
and transfers to the Lender a floating charge, as and by way of a continuing
security interest, over:
(e) INVENTORY - all goods and chattels now or hereafter forming the
inventory of the Undersigned, of whatever kind and wherever located,
including, without limitation, all goods, merchandise, raw material,
work in process, finished goods and chattels held for sale, lease or
resale, or furnished or to be furnished under contracts for service or
used or consumed in the business of the Undersigned, goods used in or
procured for packing or packaging, timber cut or to be cut, oil, gas
and minerals extracted or to be extracted, all livestock and the young
thereof after conception and
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all crops which become such within one year after the date of
execution of this Agreement (all of which goods and chattels are
hereinafter collectively called "Inventory");
(f) REAL ESTATE - all real and immovable property, both freehold and
leasehold, now or hereafter owned or acquired by the Undersigned,
together with all buildings, erections, improvements and fixtures
situate thereupon or used in connection therewith, including any
lease, verbal or written or any agreement therefor, (all of which
property is hereinafter collectively called "Real Estate") provided,
however, the last day of any term of any such lease, verbal or
written, or any agreement therefor now held or hereafter held by the
Undersigned, is excepted out of the Real Estate charged by this
Agreement, but should such charge become enforceable the Undersigned
shall thereafter stand possessed of any such reversion upon trust to
assign and dispose thereof as the Lender may direct; and
(g) OTHER PROPERTY - the undertaking and all other property and assets of
the Undersigned for the time being of whatsoever nature and kind both
present and future including without limiting the generality of the
foregoing, uncalled capital, moneys, rights, franchises, negotiable
and non-negotiable instruments, judgments and securities (all of which
are hereinafter collectively called "Other Property"), other than that
which is at any and all times validly subject to the first, fixed and
specific mortgage and charge hereby created or subject to the
assignment set forth in paragraph 10.
All of the above mentioned property together with the Assignment in paragraph
10 is hereinafter called the "Collateral".
2. LOCATION OF PROPERTY. The Undersigned confirms and warrants that the
Collateral will be kept at the address shown below the Undersigned's signature
to this Agreement, and, subject to the provisions of paragraph 4, the
Undersigned will not remove any of the Collateral from said location without
the prior written consent of the Lender.
3. REPRESENTATIONS, WARRANTIES & COVENANTS. The Undersigned hereby
represents, warrants or covenants to or with the Lender, as the case may be,
that:
(a) subject to any inconsistent provisions of the Subordinated Loan
Agreement, the Undersigned will reimburse the Lender for all costs and
expenses (including legal fees on a solicitor and his own client
basis) incurred by it in the preparation, execution and filing of this
Agreement and the taking, recovering or possessing the Collateral and
in any other proceedings taken for the purpose of protecting or
enforcing the remedies provided herein, or otherwise in relation to
the Collateral or by reason of non-payment of the Obligations and all
such costs and expenses shall bear interest at the highest rate borne
by any of the Obligations and shall be payable on demand;
(b) the Undersigned will keep the Collateral free and clear of all taxes,
assessments, liens and encumbrances other than Permitted Encumbrances
as such term is defined in the Subordinated Loan Agreement;
(c) the Undersigned will care for, protect and preserve the Collateral and
not permit its value to be impaired and, subject to paragraph 4, will
not sell, transfer, assign, mortgage, charge, pledge, hypothecate or
deliver or otherwise dispose of any such property or any interest
therein except as permitted pursuant to the Subordinated Loan
Agreement without the prior written consent of the Lender;
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(d) the Undersigned will keep the Collateral insured under policies with
such provisions, for such amounts and by such insurers satisfactory to
the Lender from time to time, and will maintain such insurance with
loss, if any, payable to the Lender and will lodge such policies with
the Lender;
(e) the Lender shall be entitled from time to time and at any time to
inspect the Collateral wherever located and to make enquiries and
tests concerning the Collateral, and the Undersigned will defray all
expenses in connection therewith.
4. USE OF SPECIFICALLY CHARGED PROPERTY DEALING WITH INVENTORY, REAL
ESTATE OR OTHER PROPERTY. Until the occurrence of an event of default, as
hereinafter provided, the Undersigned may use the Collateral specifically
charged in any lawful manner not inconsistent with the Subordinated Loan
Agreement and the charges created by this Agreement, and deal with the
Inventory, Real Estate or Other Property or any party thereof in the ordinary
course of business. Proceeds shall be received by the Undersigned in trust for
the Lender and shall be forthwith paid over to the Lender.
5. EVENTS OF DEFAULT. The Obligations shall become immediately payable
upon the occurrence of an Event of Default as such term is defined in the
Subordinated Loan Agreement.
6. ADDITIONAL POWERS UPON DEFAULT. In addition to the rights and powers
provided in paragraph 5 and 8 and under the Personal Property Security Act, the
Lender and the Receiver, as defined in paragraph 8, shall have the following
rights and powers if the security hereby constituted becomes enforceable:
(a) to dispose of any of the Collateral in the condition in which it was
at the date possession of it was taken, or after any commercially
reasonable repair, processing or preparation thereof for disposition;
(b) if any part of the Collateral is perishable or will decline speedily
in value, to sell or otherwise dispose of same without giving any
notice whatever; and
(c) to demand, xxx for and receive any Book Debts with or without notices
to the Undersigned, give effectual receipts and discharges therefor,
compromise any Book Debts which may seem bad or doubtful to the Lender
and give time for payment thereof with or without security,
and the Undersigned shall from time to time forthwith on the Lender's request
execute, do and make all such agreements, statements, further assignments,
acts, matters and things which may from time to time in the opinion of the
Lender be necessary or expedient for the purpose of carrying into effect any of
the provisions hereof and of perfecting the title of the Lender in the
Collateral, and the Lender and any of its managers or acting managers are by
the Undersigned hereby irrevocably constituted and appointed the true and
lawful attorney of the Undersigned with full power of substitution for the
Lender at its option whenever and wherever it may deem necessary or expedient
to do, make and execute all such statements, assignments, documents, acts,
matters or things with the right to use the name of the Undersigned.
7. WAIVER BY THE LENDER. Any breach by the Undersigned of any of the
provisions contained in this Agreement or any default by the Undersigned in the
observance or performance of any covenant or condition required to be observed
or performed by the Undersigned hereunder may only be waived by the Lender in
writing, provided that no such waiver by the Lender shall extend to or be taken
in any manner to affect any subsequent breach or default or the rights
resulting therefrom.
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8. APPOINTMENT OF RECEIVER AND MANAGER. The Lender may appoint in
writing any person, whether an employee or employees of the Lender or not, to
be a receiver or a receiver and manager ("Receiver") of the Collateral or any
part or parts thereof. A Receiver so appointed shall have power:
(a) to take possession of, collect and get in the Collateral, or any part
thereof and for that purpose to take any proceedings in the name of
the Undersigned or otherwise;
(b) to carry on or concur in carrying on the business of the Undersigned
and for that purpose to raise money on the Collateral in priority to
this Agreement or otherwise;
(c) to sell or concur in selling any of the Collateral; and
(d) to make any arrangement or compromise which the Receiver shall think
expedient in the interest of the Lender.
Any Receiver so appointed shall be deemed to be the agent of the Undersigned,
and the Undersigned shall be solely responsible for the Receiver's acts or
defaults and for the Receiver's remuneration and expenses, and the Lender shall
not be in any way responsible for any misconduct or negligence on the part of
the Receiver. All moneys received by the Receiver after providing for payment
of all costs, charges and expenses of or incidental to the exercise of any of
the powers of the Receiver shall be applied in or towards satisfaction of the
Security Interest. The rights and powers conferred by this paragraph are in
supplement of and not in substitution for any rights the Lender may have from
time to time.
9. PERISHABLE COLLATERAL. Except to the extent that the Lender believes
on reasonable grounds that any part of the Collateral is perishable or will
decline speedily in value, the Undersigned shall be entitled to not less than
fifteen days' notice in writing of the date, time and place of any intended
disposition of the Collateral, such notice to be sent by registered mail to the
last known post office address of the Undersigned.
10. GENERAL ASSIGNMENT OF BOOK DEBTS. And the Undersigned for good and
valuable consideration assigns, transfers, and sets over unto the Lender all
debts, accounts, choses in action, claims, demands, and moneys now due or owing
or accruing due or which may hereafter become due or owing to the Undersigned,
including (without limiting the foregoing) claims against the Crown in the
right of Canada or of any province, moneys which may become payable under any
policy of insurance in respect of any loss by fire or other cause which has
been or may be incurred by the Undersigned (collectively called "Book Debts"),
together with all contracts, securities, bills, notes, lien notes, judgments,
chattel mortgages, mortgages and all other rights, benefits and documents now
or hereafter taken, vested in or held by the Undersigned in respect of or as
security for the Book Debts hereby assigned or intended so to be or any part
thereof and the full benefit and advantage thereof, and all rights of action,
claim or demand which the Undersigned now has or may at any time hereafter have
against any person or persons, firm or corporation in respect thereof. The
Undersigned further hereby covenants, promises and agrees to and with the
Lender to well and truly execute or cause to be executed all or any such
further or other document or documents as shall or may be required by the
Lender to more completely or fully vest in the Lender the Book Debts hereby
assigned or intended so to be and the right to receive the said moneys or to
enable the Lender to recover same and will from time to time prepare and
deliver to the Lender all deeds, books, vouchers, promissory notes, bills of
exchange, accounts, letters, invoices, papers, and all other documents in any
way relating to the Book Debts. Provided that this assignment is and shall be a
continuing collateral security to the Lender for the Obligations. All money or
any other form of payment
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received by the Undersigned in payment of any Book Debts shall be received and
held by the Undersigned in trust for the Lender.
11. APPROPRIATION. The Lender shall have the right at any time to
appropriate any payment made to any portion of the Obligations and to revoke or
alter any such appropriation.
12. DEALING WITH SECURITY INTEREST. The Lender may grant extensions of
time and other indulgences, take and give up any of the Security Interest, or
modify or abstain from perfecting or taking advantage of any of the Security
Interest, accept compositions, grant releases and discharges thereof and
otherwise deal with the undersigned, debtors of the Undersigned, sureties and
others and with any of the Security Interest as the Lender may see fit without
prejudice to the liability of the Undersigned or the Lender's right to hold and
realize any of the Security Interest. The Lender shall not be accountable to
the Undersigned for the value of any of the Security Interest released except
for any moneys actually received by the Lender.
13. TERM. This Agreement shall be a continuing agreement in every respect
for the payment of the Obligations and it shall remain in full force and effect
until all of the Obligations shall be paid in full. In the event any provisions
of this Agreement shall be deemed invalid or void by any court of competent
jurisdiction, the remaining terms and provisions of this Agreement shall remain
in full force and effect.
14. NON-SUBSTITUTION. The Security Interest is in addition to and not in
substitution for any other security now or hereafter held by the Lender.
15. ACKNOWLEDGEMENT. The Undersigned acknowledges receipt of a copy of
this Agreement.
IN WITNESS WHEREOF the Undersigned has executed this Agreement this 20th day of
March, 1998.
STRIKER PAPER CANADA, INC.
Per:
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Name: Xxxxxxx Xxxx
Office: Chief Financial Officer
I have authority to bind the Corporation.
COLLATERAL IS NOW AND WILL HEREAFTER BE LOCATED AT THE FOLLOWING ADDRESS(ES):
Striker Paper Canada, Inc.
000 Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 00
Xxxxxxx, Xxxxxxx
X0X 0X0
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SCHEDULE A
EQUIPMENT LIST
